SUPERIOR COURT FOR THE STATE OF CALIFORNIA COUNTY OF ORANGE APPELLATE DIVISION

Transcription

1 Trial Court Case No. 11CM01351 Service on Attorney General required by rule 8.29(c), Cal. Rules of Court Lead Case No (consolidated appeals) SUPERIOR COURT FOR THE STATE OF CALIFORNIA COUNTY OF ORANGE APPELLATE DIVISION PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, v. ALI SAYEED et al., Defendants and Appellants. ON APPEAL FROM THE ORANGE COUNTY SUPERIOR COURT (Hon. Peter J. Wilson, Judge) AMICI CURIAE BRIEF OF THE CENTER FOR CONSTITUTIONAL RIGHTS AND JEWISH VOICE FOR PEACE IN SUPPORT OF DEFENDANTS AND APPELLANTS Maria C. LaHood, ESQ. Liz Jackson, ESQ. In Pro Hac Vice application pending State Bar Number New York State Bar Number Francisco St. Baher Azmy, ESQ. Berkeley, CA New York State Bar Number T: Dima Khalidi, ESQ. Illinois State Bar Number Center for Constitutional Rights Attorneys for Amici Curiae 666 Broadway, 7th fl., Center for Constitutional Rights New York, NY and Jewish Voice for Peace T: ; F:

2 TABLE OF CONTENTS TABLE OF AUTHORITIES ii INTRODUCTION 1 STATEMENT OF FACTS...2 ARGUMENT 4 I. PENAL LAW 403 s REFERENCE TO POLITICAL MEETINGS IS UNCONSTITUTIONALY VAGUE ON ITS FACE 6 II. PENAL LAW 403 s OTHER TERMS INVITE DISCRIMINATORY ENFORCEMENT AGAINST UNPOPULAR SPEECH..8 a. The Vagueness Doctrine is Designed to Prohibit Prosecutions that Might be Based on Arbitrary or Discriminatory Enforcement...9 b. Vague Statutory Provisions Providing Law Enforcement Discretion Risk Discriminatory Enforcement of Unpopular, But Constitutionally Protected, Speech...10 c. Appellants Criticism of Israeli Government Policy is Precisely the Type of Unpopular Speech Subject to Discriminatory Sanction by Vague Provisions of Penal Law III. PENAL LAW 403 S VAGUE PROVISIONS MAY HAVE CONTRIBUTED TO DISCRIMINATORY ENFORCEMENT OF APPELLANTS UNPOPULAR SPEECH IN THIS CASE 16 a. The Disruption Caused by Appellants Themselves Was Not Substantial. 17 b. Because Similarly Disruptive Student Speech on Campus Has Not Been Prosecuted, the Departure from Implicit Customs and Usages in This Case Suggests Discriminatory Enforcement Against Appellants Speech..18 c. There Were No Legally Sufficient Explicit Rules in Place to Cure the Risk of Discriminatory Enforcement in this Case.23 i

5 INTRODUCTION Appellants ten Muslim-American former University of California students of conscience rose to register calm, substantive protest of a political speech given by the Israeli Ambassador to the United States, based on their deeply-held objection to Israeli and United States government policy. Their remarks, though measured and short, invited jeering and cheering by opposing and supporting audience members a reaction the First Amendment protects as an attribute of self-government and as a spark for the possibility of social change. Their protest, occurring as it did in a cauldron of democracy a college campus was part of a long, admirable tradition of student activism on equally pressing issues, such as civil rights, war, and South African apartheid. Indeed, in recent years, numerous, similar campus protests have occurred without the arrest or criminal punishment imposed on these Appellants. The facts of Appellants case and the political context in which it occurred raises the troubling inference that their prosecution was based on the State s or the jury s objection to the content of their unpopular message, critical of Israeli government policy, and even their Arab and Muslim identity. Penal Law Section 403, the statute under which Appellants were convicted, is fraught with the type of vagueness that would permit such discriminatory enforcement. First, it is unclear whether section 403 s exemption for political meetings should apply to a meeting such as this, given its manifestly political nature; reasonable individuals such as Appellants did not have adequate notice, as due process requires, about whether their conduct in this meeting would be covered by the statute. Second, the trial court should have more scrupulously heeded limiting 1

6 construction imposed onto Section 403 by the California Supreme Court in In re Kay (hereinafter Kay ) (1970) 1 Cal. 3d 930, 943, to ensure that the statute s prohibition on disturbance of a meeting does not inhibit constitutionally protected speech such as Appellants. That construction required the trial court to ensure that the disturbance violated the implicit customs and usages or explicit rules governing the meeting; given the tradition of tolerance of speech on campus, and the questionable validity of any applicable rules, the strict adherence to such standard demanded by Kay, should have resulted in acquittals, not convictions. The risk that the arrest, prosecution and conviction of Appellants was a product of viewpoint based discrimination, left insufficiently checked by the trial court, merits reversal of these convictions and reaffirmation of basic First Amendment principles tolerant of speech that challenges the status quo, no matter how emotionally or politically offensive that speech may be to the majority. STATEMENT OF FACTS 1 Students at the University of California at Irvine ( UC Irvine ), like university students across the country, have regularly protested speakers and public officials without punishment, much less arrest. (4:RT [Reporter s Transcript]:737, 759, , 7:RT:737, 759, , ; 8:RT: ) That is, until February 8, 2010, when the Israeli Ambassador to the United States, Michael Oren, gave an address at UC Irvine about U.S. Israeli Relations from a Political and Personal Perspective. (4:RT: ; 1 Rather than provide a comprehensive recitation of the factual record in this case, Amicus merely highlights facts it believes central to the legal questions it addresses. 2

7 Exhibit 4.) The Ambassador s Political Perspective on U.S.-Israeli relations is well known to be a controversial one to individuals who believe that the Israeli government engages in human rights violations of Palestinians with the acquiescence or support of the United States. Accordingly, the Defendants/Appellants ( Appellants ) believed they had a duty to ensure that [their] voices [would] be heard, and that Michael Oren and any other Israeli politician knows they cannot come to make excuses for what they are doing to the Palestinians. (Exhibit 10, 1; Exhibit 29; 6:RT: ) The event was co-sponsored by the University s Department of Political Science, the College Republicans, and the Consulate General of Israel, among others. (Exhibit 4.) The event started over thirty minutes late, (4:RT:248-51, 338) and began with welcomes and introductions by Political Science Professor Mark Petracca, the president of the student group Anteaters For Israel, and another student who introduced Oren. (4:RT:259, 338; Exhibit 2, 1-5.) After Oren began his remarks, each Appellant stood up and read a short statement from index cards prepared prior to the event, addressing Israel s human rights violations and Oren s role in their perpetration, and then walked out of the room. (See, e.g., 4:RT: , , , , , , , ) In an event that ultimately lasted one hour, the totality of Appellants speech lasted no more than five minutes. (10:RT:1180.) During Oren s speech, Professor Petracca and Chancellor Michael Drake admonished the protestors for several minutes, and Oren himself was absent from the stage for approximately 15 minutes. (4:RT:259, 270, 274, , 305, 317; 7:RT:778; Exhibit 2, 7-10, 15.) Professor 3

8 Petracca said the topic was one of the most important issues facing this planet. (Exhibit 2, 6-7.) After the last statement by an Appellant, 70 to 80 people left the event, chanting on their way out. (4:RT: ; Exhibit 2, 18.) Members supporting Oren loudly jeered the statements of the protestors and heckled the protestors as they left the room. (4:RT:319.) Though Chief Paul Henisey observed antagonism between those who supported the student protestors and those who did not, none of the audience members who loudly jeered at the departing students were arrested. (4:RT: ) Oren concluded his speech, and there was no question-and-answer period. (4:RT: ; 5:RT:424.) ARGUMENT The First Amendment rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public. (Associated Press v. United States (1945) 326 U.S. 1, 20 [65 S.Ct. 1416, 1425].) In light of our profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, the First Amendment accommodates speech that may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. (New York Times v. Sullivan (1964) 376 U.S. 254, 270 [84 S. Ct. 710, 721]; see also Beilenson v. Superior Court (1996) 44 Cal.App.4th 944, 956 [the [p]reservation of free expression is of particular urgency in the political arena ](citation omitted).) 4

9 First Amendment values and university mission reach their highest convergence when controversial speech on political affairs occurs in the cauldron of campus debate. The university is peculiarly the marketplace of ideas, Keyishian v. Board of Regents of Univ. of N.Y. (1967) 385 U.S. 589, 603 [87 S. Ct. 675, 683] (hereafter Keyishian); it encourages critical thought and questioning of social and political orthodoxy, see id., and is charged with producing future leaders acculturated in the norms of a pluralistic, democratic country. (Grutter v. Bollinger (2003) 539 U.S. 306, [123 S. Ct. 2325, ].) The First Amendment likewise seeks to promote those values. (See generally Alexander Meiklejohn, Free Speech and its Relation to Self-Government (1948); John Hart Ely, Democracy and Distrust (1980).) Accordingly, courts must ensure that University students retain wide exposure to that robust exchange of ideas which discovers truth out of a multitude of tongues. (Keyishian, supra, 385 U.S. at p. 603 (internal citation omitted).) Indeed, it was at the University of California that the student free speech movement, and the power of robust student activism, was born. (See, e.g., Robert Cohen, Reginald E. Zelnik, eds. The Free Speech Movement: Reflections on Berkeley in the 1960s (2002).) Student agitation raised awareness of injustices surrounding the Vietnam War and South African Apartheid, among others, and contributed to changes of government policy in these and other areas. (Carol Zeiner, Zoned Out! Examining Campus Speech Zones (2005) 66 La. L. Rev. 1, 12 [citing Robert D. Bickel & Peter F. Lake, The Rights and Responsibilities of the Modern University (1999) pp. 7-8, 35-42].) 5

10 Appellants in this case, by challenging authority and calling out what they perceived were unjust government practices, are simply another recent manifestation of this most important constitutional tradition. Unlike prior protestors, however, government officials successfully silenced this message, through the sanction of a vague and discretionary criminal law. I. PENAL LAW 403 s REFERENCE TO POLITICAL MEETINGS IS UNCONSTITUTIONALY VAGUE ON ITS FACE. The due process principles embedded in the vagueness doctrine demand written, advance notice sufficient to provide persons of ordinary intelligence a reasonable opportunity to know what is prohibited. (Grayned v. City of Rockford (1972) 408 U.S. 104, 108 [92 S. Ct. 2294, ].). The doctrine exists both to avoid ensnaring conscientious individuals such as Appellants with criminal sanction and to prevent chilling of permissible speech causing people to steer a wider course than necessary in order to avoid the strictures of the law. (Ewing v. City of Carmel-By-the-Sea (1991) 234 Cal. App.3d 1579, 1594; see also, People v. Mirmirani (1981) 30 Cal.3d 375, 383 [observing that, because the free dissemination of ideas may be the loser, courts scrutinize vague statutes potentially inhibiting speech more aggressively] (quoting Smith v. California (1959) 361 U.S. 147, 151 [80 S. Ct. 215]).) Penal Law 403 is unconstitutionally vague on its face. The statute s title which constitutes part of the substance of the enactment, and [is] accorded the same effect as though written into the body of the law, (Farraher v. Superior Court (1919) 45 Cal. 6

11 App. 4, 5 2 ) enacts prohibitions on Disturbance of assembly or meeting other than religious or political. (Deering s Cal. Codes Annotated [emphasis added].) The text of Section 403 does nothing to clarify the statute s scope: it excludes meetings referenced in California Elections Code 18340, and thus excludes public meetings for the consideration of public questions. (Elec. Code, ) Many reasonable people would have considered the convening at which Plaintiffs were arrested to be a political meeting about a public question and thus excluded from the reach of Section 403 (either by its title or its incorporation of Section 18340). The event featured a speech by Israeli Ambassador to the United States Michael Oren about U.S. Israeli Relations from a Political and Personal Perspective. (Exhibit 4 [emphasis added].) The event was co-sponsored by the University s Department of Political Science, the College Republicans, and the Consulate General of Israel among others. (Exhibit 4.) One would have to be unreasonably naïve to imagine that the convening would not raise political questions from a contested perspective on matters of public concern or, as Professor Petracca put it, on one of the most important issues facing this planet. (Exhibit 2, 6-7.) Appellants too may have reasonably believed that Penal Law 403 s criminal sanction did not apply to their speech activity at this political event. 2 (See also People v. Superior Court (2001) 25 Cal. 4th 703, 728; People v. Hull (1991) 1 Cal. 4th 266, 272.) 7

12 II. PENAL LAW 403 s OTHER TERMS INVITE DISCRIMINATORY ENFORCEMENT AGAINST UNPOPULAR SPEECH. Penal Law 403 subjects to criminal sanction a person who willfully disturbs an assembly or public meeting (Penal Code, 403), as long as that meeting is not political, see supra. The California Supreme Court recognized the vagueness of the term disturbs, and sought to give it a sufficiently limiting construction in order to prevent its application to [a]udience activities, such as heckling, interrupting, harsh questioning, and booing, as they can nonetheless advance the goals of the First Amendment. (Kay, supra, 1 Cal. 3d at p. 939; see also id. at p. 940 [ The heckling and harassment of public officials and other speakers while making public speeches is as old as American and British politics ].) Thus, the Court imposed a limiting construction necessary to distinguish between lawful sanction and unconstitutional censure: the State must demonstrate that a defendant substantially impaired the conduct of a meeting, through conduct that she knows or should have known violates implicit customs or usages or explicit rules for governance. (Id. at 943.) Given that the terms implicit customs or usages and explicit rules are themselves susceptible to subjective interpretations, the California Supreme Court stressed that trial courts must scrupulously monitor application of this norm to the facts of a particular case to ensure it does not permit arrest or punishment based on the content of the speech. (See Kay, supra, 1 Cal. 3d. at p. 944 [ Not every violation of a general custom or of an explicit meeting rule becomes so grave as to warrant application of criminal sanction; nor does section 403 contemplate such extensive coverage ].) Trial 8

13 courts must insist on a stringent reading of section 403 lest application of the statute produce a chilling effect on the protected expression of meeting participants and thus raise serious constitutional questions concerning the provision s constitutionality. (Id. at p. 946.) A. The Vagueness Doctrine is Designed to Prohibit Prosecutions that Might be Based on Arbitrary or Discriminatory Enforcement. Recognizing that behavior as a general rule is not mapped out in advance on the basis of statutory language, (Smith v. Goguen (1974) 415 U.S. 566, 574 [94 S. Ct. 1242, 1248]), the United States Supreme Court has emphasized that perhaps the most meaningful aspect of the vagueness doctrine is not actual notice, but the other principal element of the doctrine the requirement that a legislature establish minimal guidelines to govern law enforcement. (Id.) Vague statutes are dangerous because they delegate basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. (Grayned v. City of Rockford (1972) 408 U.S. 104, [92 S. Ct. 2294, 2299].) That discretion, in turn, if left unchecked by the court, chills more speech than can be legitimately proscribed by the vague statute. (See Thornhill v. Ala. (1940) 310 U.S. 88, [60 S. Ct. 736, ] [threat of vague statute is that it readily lends itself to harsh and discriminatory enforcement by local prosecuting officials, against particular groups deemed to merit their displeasure, [and] results in a continuous and pervasive restraint on all freedom of discussion that might reasonably be regarded as within its 9

14 purview. ].) Unpopular speech is naturally the primary casualty of statutes that fail to precisely define prohibited conduct. B. Vague Statutory Provisions Providing Law Enforcement Discretion Risk Discriminatory Enforcement of Unpopular, But Constitutionally Protected, Speech. [H]istory shows that speech is suppressed when either the speaker or the message is critical of those who enforce the law. (Gentile v. State Bar of Nevada (1991) 501 U.S. 1030, 1051 [111 S. Ct. 2720, 2732].) For example, reviewing years of political efforts to root out Communist ideas from the public sphere, the United States Supreme Court recognized the political instinct to enforce laws discriminatorily against those with whom officials disagreed. It would be blinking reality not to acknowledge that there are some among us always ready to affix a Communist label upon those whose ideas they violently oppose. And experience teaches that prosecutors too are human. (Cramp v. Board of Public Instruction (1961) 368 U.S. 278, [82 S. Ct. 275, 280].) Mindful of the risk of viewpoint based suppression, the Supreme Court repeatedly invalidated statutes that used vague terms such as subversive organizations, (Baggett v. Bullitt (1964) 377 U.S. 360 [84 S. Ct. 1316]; Dombrowski v. Pfister (1965) 380 U.S. 479, [85 S. Ct. 1116, ]) and opposition to organized government. (Stromberg v. California (1931) 283 U.S. 359, 361 [51 S. Ct. 532, 533].) In Dombrowski, defendants claimed that they the term subversive provided law enforcement a pretext to prosecute them in order to discourage [their] civil rights activities. (Id. at p. 490.) Reversing the defendants convictions, the Court recognized 10

15 that unduly vague, uncertain and broad statutes with create a danger zone within which protected expression may be inhibited. (Dombrowski, supra, 380 U.S. at p. 494.) Vague statutes are particularly threatening in a democracy, given government officials natural instincts to maintain the status quo. Officials thus view challenges to political orthodoxy with particular suspicion, which tends to stifle the possibility of social change the First Amendment aspires to promote. In the Civil Rights era, it was all-toocommon, at least until the United States Supreme Court s intervention on First Amendment grounds, for government officials in segregationist states to enforce laws discriminatorily against civil rights activists demanding social change. (See Tammy W. Sun, Equality by Other Means: The Substantive Foundations of the Vagueness Doctrine (2011) 46 Harv. C.R.-C.L. L. Rev. 149, 157 [ First Amendment law experienced its own transformation during [the Civil Rights] era as the Court increasingly turned towards expressive liberty as the means for achieving and preserving racial equality ].) The Supreme Court struck down as vague those laws that could be enforced in ways that infringed on individuals speech rights because of officers and prosecutors personal aversion to the message of those protesting segregation and discrimination. (See, e.g., Edwards v. South Carolina (1963) 372 U.S. 229, 237 [83 S. Ct. 680, 684] [overturning breach of peace conviction of African-American protester at State Assembly because states are not permitted to make criminal the peaceful expression of unpopular views via vague laws]; Cox v. Louisiana (1965) 379 U.S. 536, [85 S. Ct. 453, ] [finding breach of peace statute unconstitutionally vague as to permit the punishment of the fair use of this opportunity [for free political discussion] and stating 11

16 that constitutional rights may not be denied simply because of hostility to their assertion or exercise ]; Brown v. Louisiana (1966) 383 U.S. 131 [86 S. Ct. 719] [finding sit-in at library protected First Amendment activity that could not be basis for breach of peace conviction]; NAACP v. Button (1963) 371 U.S. 415 [83 S. Ct. 328] [recognizing NAACP activities as First Amendment-protected, and finding that state may not ignore constitutional rights under the guise of enforcing professional rules].) Likewise, anti-war activists in the 1960s were common targets of law enforcement activity pursuant to vague statutes, as have been other marginalized groups. (See, e.g., Goguen, supra, 415 U.S. at p. 578 [statute prohibiting contemptuous public treatment of US flag unconstitutional because it fails to draw reasonably clear lines defining criminal activity, and it sets forth the standards so indefinitely that police, court and jury are free to react to nothing more than their own preferences for treatment of the flag ]; Papachristou v. City of Jacksonville (1972) 405 U.S. 156, 170 [92 S. Ct. 839, 847] [vagrancy law struck down with an understanding that [t]hose generally implicated by the imprecise terms of the ordinance-poor people, nonconformists, dissenters, idlers-may be required to comport themselves according to the life style deemed appropriate by the police and the courts. ].) As in Papachristou, Penal Code 403 furnishes a convenient tool for harsh and discriminatory enforcement by local prosecuting officials, against particular groups deemed to merit their displeasure. (Id. [internal citations omitted]) The majority s disdain for Appellants speech, and their Muslim and Arab identity, is akin to that the 12

17 majority held for communist, civil rights and anti-war activists that challenged the status quo. C. Appellants Criticism of Israeli Government Policy is Precisely the Type of Unpopular Speech Subject to Discriminatory Sanction by Vague Provisions of Penal Law 403. This case, like those in the anti-communist and Civil Rights eras, involves the expression of views that are disfavored by government officials, and calls for scrutiny from the courts to protect against discriminatory suppression of protected speech. Support for Palestinian human rights or, more specifically, criticism of Israel s policies toward Palestinians and attendant U.S. support is perceived as challenging a deeply held official perspective, and the status quo of U.S.-Israel relations. 3 As a result, speech activities that criticize Israel or advocate for Palestinian human rights have been the target of undue scrutiny by government officials and are being condemned, 4 sanctioned, 3 (See John J. Mearshimer and Stephen M. Walt, The Israel Lobby and US Foreign Policy (Farrar Straus and Giroux: New York, 2008) [Addressing the orthodoxy of government officials positions on Israel-Palestine, and how public criticism of Israel by government officials, academics and is attacked].) 4 (See, e.g., Glenn Greenwald, NYC officials threaten funding of Brooklyn College over Israel event, The Guardian (Feb. 4, 2013) <http://www.theguardian.com/commentisfree/2013/feb/04/brooklyn-college-bds-officialthreats> [discussing opposition by New York City officials to a student-organized event on boycott, divestment and sanctions against Israel, calling it offensive and anti-semitic and pressuring the University to cancel it]; Stephen Zunes, California State Assembly Seeks to Stifle Debate on Israel (Aug. 30, 2013) HuffingtonPost.com, The Blog <http://www.huffingtonpost.com/stephen-zunes/california-stateassembly_b_ html> [discussing California legislature s resolution condemning anti-semitism at public California universities, defining anti-semitism to include common criticisms and activism against Israeli policies, and encouraging universities to enact policies restricting student speech rights].) 13

18 surveilled 5 and criminalized 6 on many levels by state and federal prosecutors, government agencies, and at private as well as public universities. At universities around the country, organizations that promote Israeli government policies are pressuring administrators to curtail, punish or prohibit activities critical of Israel, and even threatening and filing lawsuits and civil rights complaints to attempt to compel them to do so. 7 At UC Irvine in particular, prior to Appellants arrest, there was pressure on the administration over several years to investigate and punish the Muslim 5 (See, e.g., Alex Kane, Documents expose Boston police working with FBI to track Palestine solidarity activists (Oct. 18, 2012) Mondoweiss<http://mondoweiss.net/2012/10/documents-expose-boston-police-workingwith-fbi-to-track-palestine-solidarity-activists.html>.) 6 There have been a number of threatened and prosecuted material support for terrorism cases against Palestinians engaged in advocacy for Palestinian rights and for sending charity to Palestinians. (See, e.g., Eric Lichtblau, From advocacy to terrorism, a line blurs, New York Times (June 5, 2005) <http://www.nytimes.com/2005/06/05/national/nationalspecial3/05terror.html?pagewant ed=all&_r=0> [regarding case against professor al-arian for speech activities]; Peter Wallsten, Activists cry foul over FBI probe, Washington Post (June 13, 2011) <http://articles.washingtonpost.com/ /politics/ _1_activists-crystephanie-weiner-targets> [regarding September, 2010 FBI raids of homes and organizations and Grand Jury subpoenas to anti-war and Palestine solidarity activists, investigating material support for terrorism charges for their advocacy work. After over two years, no indictments have come down].) 7 For example, several complaints to the Department of Education (DOE) under Title VI of the Civil Rights Act resulted in years-long investigations into allegations that Palestinian rights advocacy on campus creates a hostile anti-semitic environment for Jewish students. The DOE recently dismissed three of these cases against UC schools, including UC Irvine, affirming that the activities complained of (including protests, film screenings, dramatic renderings of checkpoints preventing Palestinian freedom of movement in the West Bank, etc.) constituted expression on matters of public concern, and that even when personally offensive and hurtful to some, it is not harassment. (See CCR Press Release, In Victory for Free speech, Department of Education Dismisses Complaints (Aug. 28, 2013) < 14

19 Student Union (MSU), the student group to which Appellants belonged, for a fundraiser and other events they organized. 8 The intensive nationwide local and federal government surveillance of Muslim communities and Muslim student activists engaging in constitutionally protected speech and association activities is more evidence of the pressure students activists are under. 9 In this case, students decided to protest the political position of one of the most powerful public figures in Israeli politics and US-Israeli relations 10 an official they considered responsible for human rights violations and war crimes and to challenge a 8 In addition to a Title VI complaint against UC Irvine, the Zionist Organization of America (ZOA) wanted MSU punished for its speech activities, and rejoiced when the University suspended MSU for the Oren protest. (See Morton A. Klein, After Long ZOA Campaign, UC Irvine Earns ZOA s Praise for Suspending Muslim Student Union (June 14, 2010) < [detailing ZOA s multi-year campaign against MSU, efforts to encourage criminal investigations into an MSU fundraiser, and its civil rights complaint to the DOE].) 9 (See, e.g., Matt Apuzzo and Eileen Sullivan, FBI Muslim scandal: Documents show San Francisco FBI office illegally collected information on local Muslims (March 27, 2012) Huffington Post- San Francisco, <http://www.huffingtonpost.com/2012/03/28/fbi-muslim-scandal_n_ html>; Matt Apuzzo and Adam Goldman, NYPD moves covertly in Muslim areas (Aug. 23, 2011) Associated Press, <http://www.ap.org/content/ap-in-the-news/2011/with-ciahelp-nypd-moves-covertly-in-muslim-areas>; Chris Hawley and Matt Apuzzo, NYPD infiltration of colleges raises privacy fears (Oct. 11, 2011)Associated Press, <http://www.ap.org/content/ap-in-the-news/2011/nypd-infiltration-of-collegesraises-privacy-fears>.) 10 Ambassador Oren has no shortage of opportunities to express Israel s viewpoint. (See, e.g., The Embassy of Israel to the United States, Dr. Michael B. Oren <http://www.israelemb.org/washington/newsandevents/media_appearances/pages/medi a.aspx?wpid=wpq3&pn=1> [listing Oren s recent media appearances, public statements, published op-eds, etc.].) 15

20 dominant view in the U.S. 11 (See, e.g., Exhibits 10, 29]; see also, e.g., RT: ) This was exactly the kind of expression that lies at the heart of the First Amendment, that Kay sought to protect from the overbreadth of 403: free expression articulated through disturbances that are no more than announced differences in ideology or beliefs. (Kay, supra, 1 Cal. 3d at p ) And the prosecution of Appellants for their speech is the kind of threat that Kay aimed to curtail by limiting 403 s scope: that a jury might convict persons whose expressive conduct [disturbed] a meeting only because the content of the expression conflicted with the views espoused by the meeting s organizers or official speakers. (Id. at p. 941.) III. PENAL LAW 403 S VAGUE PROVISIONS MAY HAVE CONTRIBUTED TO DISCRIMINATORY ENFORCEMENT OF APPELLANTS UNPOPULAR SPEECH IN THIS CASE. The arrest, prosecution and conviction of Appellants surfaces the risk of viewpoint-based suppression that inheres in statutes that give law enforcement and juries broad discretion. First, the disturbance in this case was far from substantial as Kay requires in order to cure the provision s vagueness, in light of the duration of the meeting and limited nature of the protest. Moreover, given the long-observed tradition of student protest on campus and the questionable validity of the alleged rules of the meeting, implicit customs and usages and explicit rules, properly interpreted, would permit, not prohibit Appellants speech activity. Appellants could not have reasonably known 11 (See, e.g., Poll: American sympathy for Israel at record high, Jerusalem Post (Mar. 15, 2013)<http://www.jpost.com/Diplomacy-and-Politics/Poll-Americanssympathies-for-Israel-match-all-time-high>; Melani McAlister, Epic encounters: Culture, Media, and US Interests in the Middle East Since 1945, (University California Press: 2005) [describing extent to which US public and media favor Israel].) 16

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